September 05, 2013

Judge Blocks Online TV Streaming Service

A Washington judge today halted the operations of FilmOn, a controversial online television streaming service. The judge found the television broadcast networks suing FilmOn X LLC for copyright infringement were likely to succeed.

The networks accused FilmOn of "exploiting…some of the most valuable intellectual property created in the United States" by allowing users to stream live television programs online. The plaintiffs, including major broadcast networks ABC, NBC, CBS and FOX, sought an injunction last month. Today, U.S. District Judge Rosemary Collyer concluded that FilmOn was retransmitting copyrighted material in violation of federal law. She
granted the network's request for a preliminary injunction.

The
injunction applies across the United States, with the exception of the boundaries of the U.S. Court of Appeals for the Second Circuit—which includes New York, Connecticut and Vermont—where the networks lost a motion for an injunction against a similar streaming service. FilmOn founder Alki David said today that he planned to appeal.

"They granted it? Well then it was rigged as I said in the first I heard they were suing in DC," he said in an email. "Certain individuals connected with the supposed random Judge selection process always get their first round. We will appeal and win." David is represented by Baker Marquart in Los Angeles.

The case in Washington is the latest to test the legality of online streaming services. After the networks lost their bid to secure an injunction in the Second Circuit, the court recently denied their petition for a rehearing. In a trial court in California, the networks secured a limited injunction blocking another streaming service from operating within the Ninth Circuit's boundaries. (That decision is now in appeal in the Ninth Circuit.)

Besides the major television networks, the plaintiffs also include Telemundo, Disney and local affiliates of the networks that air programming around the Washington region. A spokesman for Fox said in an email that they were "pleased, but not surprised that that the court recognized that the commercial retransmission of our broadcast signal without permission or compensation is a clear violation of the law." The Fox plaintiffs are being represented by Jenner & Block partner Paul Smith, co-chair of the firm's media and First Amendment practice.

Arnold & Porter intellectual property partner Robert Garrett is lead counsel for the other plaintiffs. Garrett could not immediately be reached for comment.

According to filings, FilmOn uses tiny antennas to capture signals from television networks in local markets and makes the content available for streaming online, for a fee. The networks say they never gave FilmOn license to distribute copyrighted programs.

FilmOn has argued that its service was similar to "rabbit ear" antennae that captured broadcasts on traditional television sets. Since the networks were required by federal law to make broadcasts available for free, FilmOn accused the networks of trying to block public access.

In today's ruling, Collyer said that under the federal Copyright Act, FilmOn's service violated the network's exclusive right to "perform the copyrighted work publicly." She rejected FilmOn's comparison to television antennae used in the past, since FilmOn's mini antennae were "networked together." The judge said the networks proved they would suffer irreparable harm without an injunction. The networks argued that without an immediate stop, their relationships with advertisers and authorized transmitters, along with their general control over copyrighted programs, would suffer.